The New News
[fly’s] own…”208 In fact, the court also stated, Fly is “hardly selling the [r]ecommendation ‘as its own.’”209 Therefore, the court found that it did not need to address whether Fly was in direct competition with the firms because it found that Fly did not even free ride on the firms’ information.210 This decision seriously limited the “hot news” doctrine’s applicability in the Second Circuit. One of the main reasons for this was the court’s determination that the five-factor test in NBA was dicta and was therefore not binding.211 Also, the court narrowly defined “free riding” to exclude reposting information with attribution.212 Because of this narrow definition of “free riding,” the court found that Fly did not free ride, and therefore this case did not meet the “additional element” test to avoid preemption.213 Once again, the court narrowed the application of the “hot news” doctrine without completely removing the doctrine from the law. While the Second Circuit’s ruling is not mandatory in all jurisdictions that still allow for the “hot news” misappropriation tort, because of the relatively few cases that still attempt to apply the tort, this case is likely to be incredibly persuasive. This case is also likely to limit the applicability of the “hot news” doctrine because most websites and aggregators that repost news content from other places at least attribute that information to the original source. The Second Circuit seems to have reverted the “hot news” doctrine back to its origins in INS by limiting its applicability to the misappropriation of content and the passing off of that content as the misappropriator’s own.
Righthaven While news organizations struggle to enforce their rights using a misappropriation theory, enforcement under copyright theories was met with struggle as well. In an attempt by a media organization to protect its rights in its news content, Righthaven was formed with a unique business model set on preventing individuals and organizations from reposting copyrighted material online. Righthaven came onto the court scene in 2010 when it filed its first lawsuit against someone who reposted part of a Las Vegas Review-Journal article.214 At the outset, Righthaven contracted with Stephens Media to license its newspapers’ copyrights in order to enforce those copyrights against infringers.215 Righthaven’s purpose, according to a blog post by the Stephens Media President and CEO, Sherman Frederick, is to “protect copyrighted content” and to “stop people from stealing our stuff.”216 In order to meet this mission, Righthaven receives the copyright assignments and “subsequently registers the copyright [ ] with the U.S. Copyright Office in order to then file suit in federal
208. INS, 248 U.S. at 239. 209. Barclays Capital Inc. v. Theflyonthewall.com, 650 F.3d 876 (2d Cir. 2011) (quoting INS, 248 U.S. at 239). 210. Id. at 901. Judge Reena Raggi wrote a concurrence to the majority opinion analyzing whether Fly and the firms were in direct competition with each other. Id. at 901-908 (Raggi, J., concurring). 211. Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 899-901 (2d Cir. 1997). See also John C. McDonnell, Comment, The Continuing Viability of the Hot News Misappropriation Doctrine in the Age of Internet News Aggregation, 10 Nw. J. Tech. & I ntell . P rop. 255, *25 (Jan. 2012). 212. Barclays Capital Inc. v. Theflyonthewall.com, 650 F.3d 876, 904 (2d Cir. 2011). 213. Id. at 902. 214. Comprehensive List of Copyright Infringement Lawsuits Filed by Righthaven, LLC, http://righthavenlawsuits.com/lawsuits.html (last visited Apr. 16, 2012). 215. Id. 216. Sherman Frederick, Copyright theft: We’re not taking it anymore, L as Vegas R eview-Jour nal The C omplete L as Vega n Blog , May 28, 2010, http://www.lvrj.com/blogs/sherm/Copyright_theft_ Were_not_taking_it_anymore.html?ref=164.
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